Depression in the building industry and the virtual collapse of the vacation-home business removed much of the pressure from state legislatures and local governments to extend land use legislation. But if there were few dramatic gains, there was no erosion of state and local land use controls, and some states, such as California, moved ahead in implementing previously mandated programs. An Interior Department survey released in mid-1975 found that only one state—Alabama—had no state land use measure either enacted or under legislative or executive study.
At the local level, attention shifted from the city council chamber and the planning board to the courtroom. In California, Petaluma's growth control program was upheld by a federal appeals court, while a New Jersey Supreme Court decision gave new focus to the old argument that local zoning unfairly excluded the poor.
Moving ahead in three states. In April 1975 the Florida Keys became the third area to be designated as "of critical state concern" under legislation passed in 1972. The keys, ninety-seven low-lying islands stretching 130 miles into the Gulf of Mexico, were described as "beginning to suffer, at least partially, from their own success." Tourism and residential growth were disturbing not only the area's delicate environment but also its public services, particularly its water supply and its single transportation artery.
After a noisy public hearing the Florida Cabinet voted to require local governments in the keys to prepare plans and zoning maps, subject to criteria issued by the state. The emphasis was on ensuring that public facilities were adequate for whatever future growth was planned.
In addition, Florida's 1975 legislature took a step it had rejected during the 1974 session and voted overwhelmingly to require that local governments prepare comprehensive land use plans. Those that fail to do so within a four-year period will have such plans prepared—at local expense—by the state. The state has the power to comment on, not to change, the plans which the local governments prepare. These plans are intended to do more than grace the planners' shelves. After they have been adopted by local governments, the law requires that "all land development regulations enacted or amended shall be consistent with the adopted comprehensive plan."
In California, the Coastal Zone Conservation Commission drafted a plan for the entire coastline, which will be submitted to the 1976 legislature. As promised, it was a policy document, not a zoning map. The plan's essence, it states, "is that the coast should be treated not as ordinary real estate but as a unique place, where conservation and special kinds of development should have priority." The plan calls for the protection and possible restoration of coastal wetlands, minimization of beach erosion, retention of suitable coastal lands in agricultural use, the vigorous enforcement of existing public rights to beach access, and the acquisition of an estimated $200 million in new public lands. The plan indicates that the coast is a resource to be used, as well as preserved, but cautions that "where public purchase is not proposed, the plan gives priority to private developments serving recreational and visitor needs over other types of development on the coast and encourages recreational facilities serving all income ranges, i.e., campgrounds, rental housing, or resort hotels."
The present commission, whose mandate expires at the end of 1976, recommends that its life be extended for four years, during which time local governments will incorporate the various policies of the state coastal plan into their own land use regulations.
In Vermont, economic woes and the opposition of property owners kept a state land use plan from even reaching the floor of the 1975 legislature. It was the second straight defeat for the plan, which would have set density guidelines for the entire state. Land use planning, said Gov. Thomas Salmon, in reflecting on the plan's defeat, "is not a front-burner issue in hard times." Despite this there was no serious move to repeal the state's basic land use law, Act 250. "Most people," says a staffer at the agency that administers the law, "would tell you 250 is here to stay."
Other recent state activity in the land use field included the passage of critical area legislation in Wyoming and of mandatory local planning in Nebraska and Idaho. In Montana, an unsual new law provides for the classification of land by local governments into broad categories, with future property taxes based on the classification. The landowner has some power to change his classification, either upward or downward, and is penalized (or rewarded) with corresponding changes in his tax burden.
Land use legislation was introduced, but failed to pass, in several states including Michigan, South Dakota, New Hampshire, and Washington.
Court rulings. Meanwhile, local governments, previously so concerned with "controlling growth," found that national economic forces had left them with little immediate growth to contain. Few places added new controls, but few repealed them. Politically, there was evidence that New York's financial debacle had exacerbated many communities' fears about their ability to finance future growth. This was reflected in the defeat on November ballots of more than 90 percent of state and local bond issues.
Two significant court decisions (both of which may well be appealed to the Supreme Court) could alter the legal framework within which local land use controls have been operating. A U.S. Court of Appeals in California upheld the city of Petaluma's ordinance, which limits new building permits to five hundred per year. It minimized arguments by builders that this interfered with the constitutionally protected "right to travel" and that it failed to provide adequately for regional housing needs. Said the court, "The concept of public welfare is sufficiently broad to uphold Petaluma's desire to preserve its small-town character, its open spaces and low density of population, and to grow at an orderly and deliberate pace."
While the Petaluma case tended to enlarge local government's freedom of action, a New Jersey case indicated that local discretion has some limits. That state's supreme court voided portions of the zoning ordinance of Mount Laurel Township, an affluent Camden suburb, asserting that they were so restrictive as to make it impossible for poor families and those with moderate incomes to live there. Mount Laurel's discrimination, the court found, was based not on racial or social grounds, but on economic ones. The township, like so many others around the country, had tried to hold down its property tax rate by zoning out small dwellings and apartments and zoning in industry. The court indicated that a developing municipality must "make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there" and must "zone primarily for the living welfare of people and not for the benefit of the local tax rate."
A version of this article appeared in print in the Winter 1976 issue of Resources magazine.
